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24:0714(73)CA
The decision of the Authority follows:
24 FLRA No. 73
VETERANS ADMINISTRATION
WEST LOS ANGELES MEDICAL CENTER
LOS ANGELES, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3943, AFL-CIO
Charging Party
Case No. 8-CA-50393
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
to the attached Administrative Law Judge's Decision filed by the
American Federation of Government Employees, Local 3943 (the Union).
The complaint alleged that the Veterans Administration, West Los Angeles
Medical Center (WLAMC or Respondent) violated section 7116(a)(1) and (5)
of the Statute by eliminating the work-break area for cardiology nurses
at the Wadsworth Hospital of the VA'S WLAMC and by determining the
location of the new work-break area without notifying the Union and
providing it with an opportunity to bargain over the implementation of
the change and the impact on unit employees.
II. Facts
AFGE Local 3943 represents nurses at VA'S WLAMC. Under the parties'
national agreement, the WLAMC is obligated to notify Holly Boyd, a Vice
President of Local 3943, of any bargainable changes which occur within
the Wadsworth Hospital. As to such changes, bargaining is accomplished
locally with the Wadsworth facility.
The dispute arose on May 17, 1985, when the Head Nurse cleared out
Room 4214 to convert the room for exclusive use as her office. Room
4214 had been shared by staff nurses on the A/D Ward and the Head Nurse
and used by the nurses to prepare reports and take 10-minute coffee
breaks, two of which are allowed each day. The Chief of Nursing
Services decided to convert Room 4214 to the Head Nurse's office after
she assigned one Head Nurse to handle both the A/D and B/C Wards. The
Chief Nurse did not know that the nurses were using the room for their
breaks when she made this decision. The Chief Nurse designated Room
4236 as the new break area for the entire Wing and Room 4215/4218 (a
conference room) as the work-report room for the cardiology ward nurses.
The new break-room is not in close proximity to the patient care area
and nurses on break cannot hear calls for assistance from fellow nurses
in the A/D Wards, as they could when taking breaks in Room 4214.
Nurses on the A/D Wards must assist each other with the care of
patients who have undergone cardiac catherization and in other
life-threatening situations which require an emergency call for
assistance and medication and rapid communication among health care
personnel. Nurses on break are not responsible for unforeseen
occurrences when they go off the ward for breaks. However, due to
staffing shortages, the nurses often remain near their stations during
lunchtime and rarely take their allowable coffee breaks.
Shortly after learning that Room 4214 was being reserved as a private
office for the Head Nurse, Boyd sent her a memorandum, and demanded
bargaining over the impact and implementation of the change. She asked
that the change not be implemented until agreement was reached. On May
21, 1985, a meeting took place between Boyd, the Head Nurse, the Chief
Nurse, and Dora Garcia, Respondent's Labor Relations Specialist.
Respondent participated in this meeting not to negotiate, but to discuss
Boyd's unhappiness over the change. During the meeting there was a
discussion of possible alternate arrangements. Alleged agreements
regarding the conversion of a tub room into the new work-break room were
later denied by management and management refused to meet for the
purpose of negotiating on the impact and implementation of the change.
The nurses used Room 4214 until May 30, 1985. On May 31, 1985, Boyd
gave a memorandum to the Head Nurse, with copies to other management
principals, to protest the change until the completion of bargaining
over impact and implementation.
III. Administrative Law Judge's Decision
The Judge found that the change in work and break locations of the
cardiology nurses did not change the nature of their duties, but made
the performance of their duties less convenient and efficient. The
change in the break room made the cardiology nurses less readily
available to their patients and unable to respond to calls for
assistance, should any emergency arise in their absence. The Judge
found that while the cardiology nurses on break are not held responsible
by the hospital for unforeseen occurrences, "their professional pride
and concern for their patients nevertheless suffers when they must take
a break under these circumstances." (Administrative Law Judge's
Decision, at 18.) The Judge further found that the foreseeable effect of
the change is that the nurses will be less inclined to take the rest
breaks to which they are entitled, and which are commonly accepted as
being of benefit to both employee and employer.
The Judge concluded, however, applying the factors in Department of
Health and Human Services, Social Security Administration, Region V,
Chicago, Illinois, 19 FLRA No. 101 (1985), that the Authority would
classify the changes as of a de minimis nature. The Judge noted that,
at most, the changes affect 22 employees out of a unit of 384; involve
only the location where the affected employees spend a relatively small
percentage of the working time (at least 50 minutes a day); do not
involve a change in classification, duties, pay or promotion potential;
and do not deprive employees of a location in which to perform work and
take breaks (only a less convenient and efficient one).
IV. Positions of the Parties
In its exceptions the Union argues that the Judge incorrectly held
that (1) a test should be applied to the facts and circumstances of this
case to determine whether there was a bargaining obligation; and (2)
Respondent has not committed the unfair labor practices alleged in the
complaint. The Union also asserts that the Judge relied on factors
irrelevant to any such test and failed to invoke any presumption
favoring impact and implementation bargaining. Finally, the Union
excepts to the Judge's recommended order insofar as it recommended
dismissal of the complaint and failed to provide any affirmative relief.
The General Counsel and the Respondent did not file submissions with
the Authority.
V. Analysis
In Department of Health and Human Services, Social Security
Administration, 24 FLRA No. 42 (1986), we reassessed and modified the de
minimis standard previously used to identify changes in conditions of
employment that require bargaining. We stated that in order to
determine whether a change in conditions of employment requires
bargaining, we would carefully examine the pertinent facts and
circumstances presented in each case; and that in examining the record,
principal emphasis would be placed on such general areas of
consideration as the nature and extent of the effect or reasonably
foreseeable effect of the change on conditions of employment. We also
stated that equitable considerations would be taken into account in
balancing the various interests involved; that the number of affected
employees and the parties' bargaining history would be given limited
application; and that the size of the bargaining unit would no longer
be applied.
Applying the revised standard to the facts and circumstances in this
case, we conclude that the Agency was obligated under section 7106(b)(2)
and (3) of the Statute to bargain with the Union concerning the impact
and implementation of its decision to relocate the cardiology nurses'
work-break room. The record reveals that the change significantly
affected the ability of the nurses to provide the best patient care in a
situation where staffing levels were already characterized as
dangerously short. The foreseeable result of the change was that nurses
would forego breaks in order to remain in the patient care area and be
available in case an emergency situation should arise. The change in
the work-break area was permanent and disrupted the work routine and it
appears this change made the performance of duties less efficient.
Clearly these are just the kinds of problems that are best resolved
through meaningful bilateral negotiations between the Union and the
Agency and not by us. Participation by the nurses' respresentative in
the selection of the new break-room could have resolved the dispute and
prevented it from rising to this level. A balancing of labor and
management's interests reveals that they both would benefit from
meaningful negotiation on the most appropriate location of a work-break
room. Mutual resolution of the problems presented by management's
action will allow the nurses to perform their duties in the most
efficient and effective manner and provide the Agency and patients with
the highest level of patient care.
The number of employees affected by the change herein does not render
the impact of the change less substantial or classify the matter as too
insignificant for negotiation. The twenty-two employees (out of a unit
of 384) were subject to a substantial change in working conditions. The
change altered the efficiency of their operation and added new pressures
and concerns.
Accordingly, we do not agree with the Judg's finding that the change
in the work-break location did not impose a duty on the Agency to
bargain with the Union concerning the impact of its decision.
Considering the totality of the facts and circumstances presented on
this record, we conclude that the Agency violated section 7116(a)(1) and
(5) of the Statute by eliminating the work-break area for cardiology
nurses at the Wadsworth Hospital of the VA'S West Los Angeles Medical
Center and by determining the location of the new work-break area
without notifying the Union and providing it an opportunity to bargain.
VI. Conclusion
Pursuant to section 2423 of the Authority's Rules and Regulations and
section 7118 of the Statute, we have reviewed the rulings of the Judge
made at the hearing, find that no prejudicial error was committed, and
thus affirm those rulings. We have considered the Judge's decision and
the entire record, including the parties' contentions, and adopt the
Judge's findings and conclusions only to the extent consistent with our
decision.
We conclude that the Respondent violated section 7116(a)(1) and (5)
of the Statute by eliminating the work-break area for cardiology nurses
at the Wadsworth Hospital of the VA'S West Los Angeles Medical Center
and by determining the location of the new work-break area without
notifying the Union and providing it an opportunity to bargain over the
implementation of the change and the impact on unit employees.
ORDER
Pursuant to Section 2423.29 of the Authority's Rules and Regulations
and Section 7118 of the Statute, it is hereby ordered that the Veterans
Administration, West Los Angeles Medical Center, Los Angeles,
California:
1. Cease and desist from:
(a) Unilaterally eliminating the work-break area for cardiology
nurses at the Wadsworth Hospital of the VA'S West Los Angeles Medical
Center and by determining the location of the new work-break area
without notifying the American Federation of Government Employees, Local
3943, AFL-CIO, the employees' exclusive bargaining representative, and
providing it an opportunity to negotiate with respect to the procedures
to be observed in implementing such change and appropriate arrangements
for employees adversely affected thereby.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, bargain with the American Federation of Government
Employees, Local 3943, AFL-CIO, the employees' exclusive bargaining
representative, with respect to procedures and appropriate arrangements
for employees adversely affected by the change in the work-break area
for cardiology nurses at the Wadsworth Hospital.
(b) Post at the Wadsworth Hospital of the Veterans Administration's
West Los Angeles Medical Center, wherever bargaining unit employees are
located, copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed by the Chief of Nursing Services and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places
where Notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that said Notices are not altered, defaced, or
covered by any other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., December 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally change conditions of employment by
eliminating the work-break area for cardiology nurses at the Wadsworth
Hospital of the Veterans Administration's West Los Angeles Medical
Center and by determining a new work-break area, without first affording
the American Federation of Government Employees, Local 3943, AFL-CIO,
the employees' exclusive bargaining representative, an opportunity to
negotiate with respect to the procedures to be observed in implementing
the change and appropriate arrangements for employees adversely affected
thereby.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL, upon request, bargain with the American Federation of
Government Employees, Local 3943, AFL-CIO, the employees' exclusive
bargaining representative, with respect to procedures and appropriate
arrangements for employees adversely affected by the elimination of the
work-break area for cardiology nurses and the determination of a new
work-break area.
. . . . . . . (ACTIVITY)
Dated: . . . . . . By: . . . . Chief of Nursing Services
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071, and whose telephone number is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 8-CA-50393
VETERANS ADMINISTRATION WEST LOS ANGELES MEDICAL
CENTER, LOS ANGELES, CALIFORNIA,
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 3943, AFL-CIO,
Charging Party
Marco Gomez and
Dora Garcia,
For the Respondent
John R. Pannozzo, Jr.
For the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 29 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
Pursuant to a charge of unfair labor practices filed on June 19, 1985
and amended on September 19, the Regional Director of Region 8 of the
Federal Labor Relations Authority (hereinafter, the "authority")
investigated and, on September 27, 1985, served the complaint initiating
this proceeding.
The complaint alleges that on or about May 17, 1985, Respondent
changed the working conditions of unit employees by eliminating the
work-break room for certain nurses, without first notifying the Charging
Party (also referred to herein as the "Union" and "Local 3943"), and
providing it with an opportunity to bargain over the implementation of
the change and the impact on unit employees, in violation of Section
7116(a)(1) and (5) of the Statute. /1/ The complaint further alleges
that the same statutory provisions were violated when on or about June
17, 1985, Respondent determined the location of the new work-break room
for certain nurses without completing bargaining with Local 3943, on
behalf of the American Federation of Government Employees ("AFGE"), over
the impact and implementation of the change.
Respondent denies that it has violated the Statute.
A hearing was held on November 19 and 20, 1985, in Los Angeles,
California. The parties appeared, adduced documentary evidence, and
examined witnesses. Briefs were filed by the Respondent on January 13,
1986, and by the General Counsel on January 14, pursuant to a December
12, 1985, order extending the briefing time until January 14. Based
upon the record made in this proceeding, my observation of the demeanor
of the witnesses, and the briefs, I enter the following findings of fact
and conclusions of law, and recommend the entry of the following order.
Findings of Fact /2/
1. At all times material herein, Respondent has been, and is now, an
agency within the meaning of 5 U.S.C. 7103(a)(3).
2. The West Los Angeles Medical Center ("WLAMC") of the Veterans
Administration ("VA") includes two separate hospital facilities -- one
at Brentwood and one at Wadsworth. This case concerns the Wadsworth
facility. Since 1979, Rowena Bishop has been the Chief of the Nursing
Service at Wadsworth. Catherine Gloodt is the Head Nurse for Ward 4
East at Wadsworth.
3. At all times material herein, AFGE has been and is now a labor
organization within the meaning of 5 U.S.C. 7103(a)(4).
4. Since on or about August 13, 1982, AFGE has represented certain
VA employees. There are approximately 17,000 professionals in the unit.
There is presently no nationwide professional contract. One is being
negotiated and is in litigation over negotiability issues.
5. On January 7, 1985, a unit of nurses was included in the
certified, national, consolidated, professional unit of VA employees
represented by AFGE for the purpose of exclusive representation. local
3943 is a constituent local of AFGE. No negotiations involving Local
3943 has taken place since certification.
6. Local 3943 represents nurses at VA'S WLAMC, which is comprised of
the two, separate facilities -- the Brentwood hospital has 151
bargaining unit employees and the Wadsworth hospital has 384. Local
3943 also represents 500 VA employees at its Long Beach Medical
facilities and 250 at VA'S Sepulveda facilities. Not all professionals
in the unit are nurses. Prior to AFGE'S certification, the nurses at
these hospitals were represented by the California Nurses Association.
7. The WLAMC is obligated to notify Holly Boyd a Vice-President of
Local 3943, of any bargainable changes which occur strictly within the
Wadsworth hospital, where she has worked as a nurse on the A/D Ward in
the 4 East Wing for one year. As to such changes, bargaining is done
locally, within the Wadsworth facility.
8. The Wadsworth hospital was constructed in 1977. Its 4 East Wing
has four wards -- the A and D Wards which serve cardiology patients;
the B Ward which serves hematology and oncology patients; and the B and
C Wards which contain general medicine patients. The 4 East Wing is
comprised of four squares, with the A and D Wards being located in the
front of the wing separated by the receptionist's desk which faces the
corridor leading from the elevators onto the wing. The B Ward is
located behind the A Ward. The C Ward is located behind the D Ward.
9. Since the Wadsworth hospital was constructed, Room 4214, like
similarly situated rooms on other wings, had been shared by staff nurses
on the A/D Ward and the Head Nurse and used as a room in which the
nurses prepared their reports and took their 10-minute coffee breaks,
two of which are allowed a day. Room 4214 is located behind the
receptionist's desk, is centrally located between the A and D Wards, and
is convenient for the nurses on those wards and allows them to hear
calls for assistance by other cardiology nurses. In Room 4214 were kept
the on-call schedules of the doctors; staff schedules; discharge
planning and daily patient reports; records and personal communications
from the nursing office; cardiac catherization schedules; and a tape
machine for giving "report". "Report" refers to a report given and
received by nurses at the change of shifts; takes one-half hour to
prepare by the outgoing nurse; and informs the incoming nurse of the
needs and conditions of the patients. In Room 4214, the cardiology
nurses not only gave report and took coffee breaks, but also completed
care plans, charts, and discharge plans for the patients. Room 4214
provided a convenient and quiet place for the nurses to work on these
items. All of these reports, plans and charts are confidential in
nature.
10. On May 17, 1985, Holly Boyd walked by Room 4214 and saw Head
Nurse Gloodt clearing out papers and throwing things away. Head Nurse
Gloodt explained to Ms. Boyd that she was moving out the nurses' things
and, from then on, would have exclusive use of that room as her office.
Head Nurse Gloodt was acting on orders of Rowena Bishop, the Chief of
Nursing Services at Wadsworth. Chief Nurse Bishop made this decision
because there would no longer be two Head Nurses on 4 East Wing. Head
Nurse Gloodt was to administer both the A/D and B/C Wards (also called
"Pods") (Tr. 104) and be in charge of some 57 beds and 30 employees.
Head Nurse Gloodt had been Head Nurse of B/C Ward on the 4 East Wing.
Chief Nurse Bishop decided on this move because she felt that Head Nurse
Gloodt needed a place where she could have privacy and a place where she
could carry out her administrative duties without interruption. In Room
4214, Head Nurse Gloodt would be centrally located and adjacent to the
central communication desk, the primary communication source for patient
care. In Room 4214, Head Nurse Gloodt would be more identifiable as
"being accountable for the total wing" (Tr. 104). Chief Nurse Bishop
did not know that the A/D Ward nurses were using Room 4214 for their
breaks when she made this decision. Head Nurse Gloodt's office had been
in Room 4236, which she shared with B/C Wards nurses who gave report and
took their breaks in this room. As Head Nurse of both A/D and B/C
Wards, Head Nurse Gloodt has to counsel and evaluate employees and
follow up on patient-care complaint. In making this decision, Chief
Nurse Bishop designated Room 4236 as the break area for the whole 4 East
Wing, and Room 4215/4218 (a conference room which links Wards A and B)
as the work-report room for the cardiology ward nurses.
11. Room 4236 measures 9.5 by 13 feet. Room 4214 measures 8.5 by
11.5 feet. Both have locked desks and file cabinets. Room 4236 is
located on Ward B, down a long hallway from Room 4214 and around the
corner in the rear of the 4 East Wing. It is 69 feet from Room 4214;
159 feet from the most remote area of Ward A, in contrast to 90 feet
distance between Room 4214 and this area; and 183 feet from the most
remote area of Ward D, in contrast to 114 feet distance between Room
4214 and this area. The cardiology nurses on breaks in Room 4236 can
not hear calls for assistance from fellow nurses in the A/D Wards, as
they could when taking breaks in Room 4214.
12. Nurses on the A/D Wards must assist each other when patients who
have undergone cardiac catherization begin to bleed from the femoral
artery or from a major vessel. The procedure for stopping the flow of
blood does not permit a cardiology nurse the opportunity to reach for a
telephone since both hands must be used to place pressure on the artery
or vessel. Cardiac catherizations occur one to three times daily at
Wadsworth. Other life-threatening situations faced by nurses on the A/D
Wards include a patient experiencing chest pain, which could be a
myocardial infarction requiring an emergency call for assistance and
medication, and a patient experiencing cardiac arrest, which requires
rapid communication among health care personnel.
13. Nurses on break are not responsible for unforeseen occurrences.
They are held responsible for changes in a patient's condition that the
nurse was aware of prior to going on break or that the nurse was
involved with in some way, or for treatment that was supposed to be
administered and was not, and for not informing a colleague that the
nurse is taking a break. When a nurse takes a break, another nursing
personnel must be available. See TR. 155-156 and 166 where Chief Nurse
Bishop so testified, and whose testimony I credit on this point. /3/
14. Nurses are allowed to go off the ward for breaks. However, due
to staffing shortages, many times the nurses remain near their stations
even during lunchtime and "rare(ly)" take their allowable coffee break
(TR. 183). Most of the time, on the day shift, 3 nursing personnel care
for the 25 beds on the A/D Wards, a situation regarded as "dangerously
short" by the nurses (TR.65).
15. The conference room now being jsed by the A/D nurses to give
report on the tape machine is also used for doctor and patient care
conferences and by students and other hospital personnel. Scheduling
conflicts sometimes interfere with the nurses giving report on the tape
recorder. A transient couple removed and taped over confidential
patient information since the move of the tape recorder to the
conference room. This never happened while the tape machine was kept in
Room 4214, although it too is kept unlocked.
16. The "morale" of the cardiology nurses, and their "dignity"
suffered when they were "put out" of Room 4214 to make room for a
private office for Head Nurse Gloodt (TR. 49). The nurses no longer
have as private an area to complete discharge planning and patient care
plans. These plans can be made at the nursing station and on the ward,
but with less ease and efficiency. There is now the possibility of a
breach of patient confidentiality since personnel matters are discussed
within earshot of people randomly walking by the nurses. Also, the
written materials used by the nurses in performing their duties, and
formerly kept in Room 4214, are now to be found on three different
bulletin boards.
17. On May 17, 1985, shortly after learning that Room 4214 was being
reserved as a private office for Head Nurse Gloodt, Nurse Boyd sent her
a memorandum, as Vice-President of Local 3943, and demanded bargaining
over the impact and implementation of the change. She asked Head Nurse
Gloodt not to implement the change until agreement was reached and asked
for a reply by May 22.
18. On May 21, 1985, a meeting took place between Vice-President
Boyd, Head Nurse Gloodt, Chief Nurse Bishop, and Dora Garcia,
Respondent's Labor Relations Specialists. The purpose of Respondent in
participating in this meeting was not to negotiate, but to discuss the
unhappiness of Vice-President Boyd over the change. During the meeting
there was a discussion of possible alternate arrangements for the
nurses' report and break rooms, specifically use of Room 4261 (the tub
room), as suggested by Vice-President Boyd.
19. On May 21, 1985, Head Nurse Gloodt sent a work order to the
Engineering Service in which she asked for expedited service on making
four changes to the tub room -- install electrical outlets; dynamite
floor drain; remove hand rail; and remove signs off doors. This work
order was prepared on the instruction of Ms. Garcia.
20. On May 23, 1985, Vice-President Boyd prepared a memorandum of
understanding to Ms. Garcia in which it was stated that the tub room,
with certain modifications, would be used as the new report and break
room instead of Room 4214.
21. At the parties labor-management meeting on May 28, 1985, Ms.
Garcia referred to the May 23 memorandum and denied entering into any
such agreement. She said that the tub room would not be so used. /4/
She said that the nurses could make report out on the POD, at the
nurses' station, or carry the tape recorder to any empty patient's room.
22. The cardiology nurses continued to use Room 4214 for report and
discharge planning until May 30, 1985. They also continued to use it
for breaks until about that time "but less and less" as the "atmosphere
wasn't conducive to that" and they did not feel "comfortable in there
any longer" (TR. 20). Head Nurse Gloodt began moving her belongings
from Room 4236 into Room 4214 on May 17. On May 30, she moved the tape
machine from the desk in Room 4214 into patient Room 1 on Ward A. On
May 30, she also began locking the door to Room 4214 when she was not
there.
23. From May 30, 1985, to June 17, 1985, the cardiology nurses
usually used patient Room 1 as their report and break room. At times,
to keep the room free, it was necessary to place a patient in the B/C
Ward.
24. On May 31, 1985, Vice-President Boyd gave a memorandum to Head
Nurse Gloodt, with a copy to Chief Nurse Bishop and Ms. Garcia to
protest the change in report and break area for the cardiology nurses
until the completion of bargaining over the impact and implementation of
the change. A discussion ensued in which Vice-President Boyd requested
continued use of Room 4214 until the completion of bargaining. Head
Nurse Gloodt stated that she had been told by Chief Nurse Bishop to make
the change and that this had been approved by Ms. Garcia.
25. On June 5, 1985, Vice-President Boyd sent a memorandum to Chief
Nurse Bishop, with a copy to Ms. Garcia, in which she complained about
disruption of the work routine and morale of the cardiology nurses
caused by the change in their work and break room; submitted four
possible solutions; and asked for counterproposals within five days.
Chief Nurse Bishop acknowledged receipt of the June 5 memorandum on June
10 and stated that the Labor Relations Section would provide appropriate
responses.
26. On June 17, 1985, Ms. Garcia responded to Vice-President Boyd.
In a memorandum, Ms. Garcia stated that, in an attempt to accommodate
the concerns of Local 3943 about "the reoccupation of Room 4214 to its
original designated purpose, which is that of a Head Nurse office" (G.C.
Exh. 8), Room 4215/4218 (a conference room) "may be used for taping and
receiving report with exception of those times it is reserved for
conferences at which time other arrangements will be made" (G.C. Exh. 8)
and that Room 4236 would be "designated as a break room on 4E b/c" (G.C.
Exh. 8). Ms. Garcia gave the memorandum to Vice-President Boyd on June
17, at a meeting attended also by Chief Nurse Bishop. Ms. Garcia said
that "that was what the arrangements were going to be and that there was
not to be any further discussion about it, or bargaining" (TR. 27).
27. Local 3943 never received any counterporposals in response to
its memorandum of June 5, 1985.
28. Chief Nurse Bishop never considered that management was
bargaining with Local 3943 over the change in the work and break room of
the cardiology nurses as she "did not see it as a change" (TR. 134 and
see also TR. 146).
29. There are 9 to 10 registered nurses on the A/D Wards and 10 to
11 on the B/C Wards who "were affected by that change (the establishment
of Room 4214 as the Head Nurse's office and Room 4236 as the break
room)" (TR. 164).
30. There was no evidence of any bargaining history or past
practices according to which the parties have handled similar changes.
Discussion and Conclusions
The General Counsel does not contend that Respondent owed a duty to
Local 3943 to negotiate "over the substance of its decision to select
the rooms to be used for work and break" by nurses in the bargaining
unit. See G.C. Br. 12. This is a right of management reserved to it by
Section 7106(b) (1) of the Statute /5/ and, of course, includes the
right to make a wrong decision which the record indicates may have
happened here. /6/ While management may elect to bargain over Section
7106(b)(1) rights, it did not do so here; and the General Counsel does
not seem to contend otherwise. At most, Respondent listened to concerns
expressed by the nurses and tried to alleviate them.
The rights which are at issue here are the rights of a labor
organization to bargain with management over procedures management will
observe in exercising its authority, and appropriate arrangements for
employees adversely affected by the exercise of management authority --
so-called "impact and implementation" bargaining. See Section
7106(b)(2) and (3) of the Statute. /7/
Respondent admittedly did not bargain with Local 3943 over the impact
and implementation of its decision to relocate the work and break areas
of the nurses in the A/D Wards of its Wadsworth hospital and contends
that such bargaining was not necessary because the change was de minimis
in nature. See R. Br. 4. If, indeed, the change was of a de minimis
nature, this Authority does not view bargaining as necessary under the
Statute.
In measuring whether a change is de minimis nature, the Authority
carefully examines "the totality of the facts and circumstances
presented in each case". See Department of Health and Human Services,
Social Security Administration, Region V, Chicago, Illinois (hereinafter
DHHS), 19 FLRA 827, 829 (1985). Among the factors considered are these:
1. The nature of the change as it affects or foreseeably
affects unit employees, as individuals or as a whole (e.g., the
extent of the change in work duties, location, office space,
hours, employment, loss of benefits and/or wages, etc.);
2. The temporary, recurring or permanent nature of the change
(i.e., the duration and the frequency with which it affects unit
employees);
3. The number of unit employees affected or foreseeably
affected by the change;
4. The size of the bargaining unit;
5. The extent to which the parties may have established,
through negotiation or past practice, procedures and appropriate
arrangements concerning analogous changes in the past.
See DHHS, 19 FLRA at 830 and 835. Such considerations "are not
intended to constitute an all-inclusive list;" nor are they intended to
be applied in a "mechanistic" manner. DHHS, id. at 830. Former
Authority member William J. McGinnis, Jr. also considered a sixth
factor, namely: "When would the implementation of the change involve or
adversely affect unit employees." DHHS, id. at 835.
In DHHS, the change required employees at three branch offices to
travel to State of Michigan offices in the course of performing their
duties and was held to be de minimis by the Authority. It affected five
or six employees out of a substantially larger number of employees in
the bargaining unit. The work duties remained substantially the same.
The State offices were only six or seven blocks to four miles away. The
hours of work appeared to remain unchanged. The work environment in at
least one office was similar to that of an SSA office. Employees were
compensated for their travel expenses. The travel time totaled only one
day, in one office, up to six days in another. The change was a
short-lived and temporary one. And any past bargaining over similar
changes was limited to consultation concerning the posting of new travel
schedules. See DHHS, id. at 829. As to these factors, the Authority
noted "particularly the slight nature of the changes; the short-lived
temporary duration of the change; the few employees who were affected
relative to the total number of employees represented in the
consolidated unit; and the absence of any demonstrated bargaining
history or past practice according to which the parties have handled
similar changes in the past." See DHHS, id. at 830.
Applying the same criteria as in DHHS, the Authority found a change
to be more than de minimis in Department of the Treasury, U.S. Customs
Service ("Customs"), 19 FLRA 1155 (1985) where a change ("Minimal
Passenger Revenue Collection") resulted in the elimination of overtime
for cashiers at approximately 25 airports and the actual loss of
overtime earnings for such employees; had a reasonable foreseeable
impact on unit employees in terms of potential reductions-in-force,
reduction in overtime, classification changes and other changes in the
assignment of work; was permanent and immediate; foreseeably impacted
on the entire classification of cashiers throughout the agency; and
created a new, nationwide policy concerning which the parties had not
previously negotiated on a nationwide basis. See Customs, id. at 1158,
relied upon by the General Counsel at page 20 of his brief.
The General Counsel distinguishes the decision upon which Respondent
relies, and in which the Authority found the changes to be of a de
minimis nature. See U.S. Army Reserve Components Personnel and
Administration Center, St. Louis, Missouri ("Army"), 20 FLRA 117 (1985)
and compare R. Br. 4-7, 10-11 with G.C. Br. 20-21. In Army, the
activity relocated its Date Management and Record Service across the
hall from the north side of the west end of the fourth floor to south
side of the east end of the fourth floor. The originial location
contained 3100 square feet of space, multiple aisles between desks,
windows and 42 light fixtures. The final location had 1550 square feet
of space, a single aisle between desks, no windows and 27 light fixtures
and was also closer to the ventilation system cold air return and had an
increased noise level due to its proximity to another division. The
Authority noted that "the work duties performed by the relocated unit
employees were not affected in any way" and that the relocation "was of
a limited nature inasmuch as it involved only the employees of one
organizational entity relocating from one place to another on the same
floor" (id. at 119-120). But for the reduction in office space, the
Authority found the other changes to have been "minor in nature and more
applicable to resolution through the negotiated grievance procedure"
(id. at 120). The Authority also noted that, while the relocation was
permanent, only 23 employees out of a unit of approximately 1500 were
affected. And, finally, the Authority noted that there was no evidence
of a past practice with respect to prior relocations of employees or
with respect to other analogous changes in employees' working
conditions.
The General Counsel also distinguishes, at page 21 of his brief,
footnote 18, Department of Housing and Urban Development, Columbia Area
Office, Columbia, South Carolina (HUD), 20 FLRA 233 (1985) in which the
Authority found de minimis a change that effected the reassignment of
two unit employees out of a nationwide consolidated unit of
approximately 200 professional or a nationwide consolidated unit of
8,000 nonprofessional employees -- both units being governed by one
master collective bargaining agreement. (The record did not show to
which unit the two reassigned employees belonged.) In reaching its
conclusion, the Authority noted "particularly" that, although the duties
of the two employees changed, their work location, pay, grade and
promotion potential did not. (id. at 236) The Authority also noted
"particularly" that the change, while permanent, affected only 2 unit
employees out of a unit of either 200 or 8,000 (ibid). The reassignment
was made "pursuant to a national field reorganization (announced in
February 1983) and a reduction in staff (whereby) the Columbia Area
Office was facing a loss of 17 employees" (HUD, id. at 234). Two days
after this decision, the Authority ruled as de minimis a change at
another area office of HUD, made pursuant to plans begun in July 1981
for restructuring the Loan Management Branch of its Washington, D.C.,
Area Office. The plans were implemented in October 1981. The Authority
found this change also to be de minimis and noted "particularly that
only three employees in a unit of either approximately 200 or 8,000
employees were assigned unspecified 'unclassified duties,' that the
record fails to establish that any other unit employees were directly
affected, and that the reorganization was of temporary direction." See
U.S. Department of Housing and Urban Development, Washington, D.C., Area
Office, 20 FLRA 374, 378 (1985).
The General Counsel, at page 22 of his brief, distinguishes United
States Department of the Treasury, Internal Revenue Service, Chicago,
Illinois ("IRS"), 20 FLRA 46 (1985), in which the Authority found de
minimis a change whereby 2 employees (out of a section of 19 and in a
unit of all professional and nonprofessional employees of the
Respondent) were required to keep a log of their daily time changes in
order to insure that they were properly utilizing their time. Prior to
this change, all 19 employees in the section kept only monthly accounts
of their time. In reaching its conclusion, the Authority noted
"particularly the slight nature of the change and the small number of
employees affected" (id. at 50). It also noted that the change was
"indefinite," but "temporary" (id. at 49) and did not change the duties
of the employees but provided only a more accurate method of recording
their time use. The Authority also noted that there was no evidence
that this requirement "would be applied on a wider scale or on a
permanent basis, either within the (section at issue) or activity-wide"
(id. at 50).
The General Counsel, at page 23 of his brief also distinguishes
Veterans Administration Medical Center, Phoenix, Arizona ("VA"), 20 FLRA
399 (1985) in which the Authority found de minimis a change that
involved the reassignment of one unit employee to different job duties
and a different work schedule. The unit was part of nationwide
consolidated unit of nonprofessional employees exclusively represented
by AFGE, with no collective bargaining agreement then in effect for the
consolidated unit. The reassigned employee suffered no change in grade,
pay, number of hours per week, or benefits. While the new position
requires the employee to rotate shifts and work on holidays, he will be
required to work on only one holiday per year and will spend
approximately 80 percent of his time on the same shifts. There was no
evidence to show a past practice with regard to negotiations concerning
an analogous change in the past.
The General Counsel, at page 23 of his brief, also distinguishes
Federal Aviation Administration (FAA), 20 FLRA 430 (September 30, 1985)
in which the Authority held de minimis a change in which one unit
employee was reassigned from FAA'S Bridgeport, West Virginia, facility
to new duties at its Elkins and Ellinore, West Virginia, facilities.
While the work station of the employee remained the same, the new
assignment requires him to travel approximately three to five times a
week. One-way travel from Bridgeport to Elkins is approximately 55
miles and from Bridgeport to Ellinore is approximately 42 miles. The
employee was required to travel in a General Services Administration
vehicle which he regarded as unsafe, but did not report. Prior to the
new assignment, the employee had, occasionally, traveled from Bridgeport
to Elkins and Ellinore, In reaching its conclusion the Authority noted
"particularly that the change involved only the increased frequency in
travel of one employee in a nationwide consolidated unit" (FAA, id, at
434). The nationwide bargaining unit was Professional Airways Systems
Specialists/MEBA, AFL-CIO ("PASS"). Eleven days after this decision,
the Authority held to be more than de minimis, the reassignment of two
unit employees in FAA'S Norfolk Sector, Field Office. See Department of
Transportation, Federal Aviation Administration, Washington, D.C., 20
FLRA 474 (October 11, 1985), where one employee was transferred from
Franklin to Norfolk, Virginia, thereby increasing his commute from three
to five minutes to one and one-half hours. The other employee was
transferred from Newport News to Norfolk, Virginia, thereby increasing
his commute from thirty minutes to an hour. In this later FAA decision
the Authority noted "particularly that the Respondent did not dispute
the General Counsel's contention that the unilateral changes herein
resulted in an adverse impact on unit employees which was more than de
minimis" (id. at 477). The two employees belonged to the same
nationwide bargaining unit of PASS as those involved in FAA, 20 FLRA
430, above discussed.
The General Counsel, at page 26 of his brief, also distinguishes
Department of Transportation, Federal Aviation Administration,
Washington, D.C. ("DOT"), 20 FLRA 481 (1985) in which the Authority held
de minimis a change in which additional duties were assigned to unit
employees classified as Electronic Technicians. The assignment was
temporary and involved substantially the same type of duties always
performed. No evidence was adduced to show that the newly assigned
duties would change, to any measurable degree, the amount of time
required by the employees to complete all their assigned duties; would
require travel to locations other than where their regular duties were
performed, or would demand experience or skills in excess of or
different from those already possessed by Electronics Technicians. The
change affected unit employees at only 2 facilities of a consolidated
nationwide unit of approximately 8,000 nonprofessional employees. There
was no evidence of any past practice or bargaining history which would
indicate how the parties had handled analogous changes. In reaching its
decision the Authority noted "particularly the relative small number of
unit employees involved (only an unshown number at two facilities) as
compared to the size of the bargaining unit, the routine nature of the
duties assigned, and the temporary nature of the change." See DOT id. at
484. The bargaining unit was again PASS'S nationwide bargaining unit
involved in the two above-discussed FAA cases.
Of interest are several other recent decisions in which the Authority
has applied its de minimis criteria. In Bureau of Field Operations,
Social Security Administration, San Francisco, California ("BFO"), 20
FLRA 80 (1985) the Authority held to be de minimis a change in the work
assignments of two employees which could affect both promotional
opportunities and retention, and thus be "significant in nature," but
was of a "temporary nature" lasting only two months (id. at 82). The
Authority noted "particularly the short duration of the temporary
reassignment in duties, the very few employees affected by the change
(at most four or five) relative to the total number of employees
represented in the unit (95 others in the office involved, but a
nationwide bargaining unit), and the absence of any demonstrated
bargaining history or past practice according to which the parties have
handled similar changes" (ibid).
In Federal Aviation Administration, Washington, D.C., 20 FLRA 112
(1985) the Authority held to be de minimis a change that resulted in the
removal of one telephone from a field office. The Authority noted
"particularly the limited nature of the change; the few (eight)
employees affected relative to the total number in the nationwide unit;
and the absence of any demonstrated bargaining history or past practice
pursuant to which the parties have handled similar changes in the past"
(id. at 115-116).
In Environmental Protection Agency and Environmental Protection
Agency Region II, 20 FLRA 644 (1985), the Authority held to be de
minimis a relocation of 12 employees, out of a nationwide bargaining
unit, from one area of a floor about 50 feet across the hall to another
area, a permanent and immediate change which resulted in less individual
office and storage space in a noisier location, but the relocated
employees remained in the same section and division and maintained their
grade levels, pay rates and hours of work. The Authority noted
"particularly the limited nature of the change, the small number of
employees affected relative to the size of the bargaining unit, and the
lack of any demonstrated bargaining history or past practice of handling
similar or analogous change" (id. at 644).
In Department of the Treasury, Internal Revenue Service and its
Cleveland, Ohio District Office, 20 FLRA 403 (1985) the Authority held
to be de minimis a change which left unit employees in the same location
but in a more cramped work space with a loss of individual desks. The
Authority noted "particularly the slight nature of the change in working
conditions other than those which were reasonably foreseeable as a
result of the 1981 announcement, as to which the Union had opportunity
to request bargaining; the few employees affected (1 of 3 offices in a
district which is composed of 60 districts covered by the parties'
national agreement) relative to the total number of employees
represented in the nationwide consolidated unit; and the absence of a
past practice concerning negotiations over analogous situations" (id. at
406).
The facts and circumstances of the instant case are now to be
considered, using the criteria set by the Authority and as illuminated
by their application to the above-discussed cases.
1. The nature of the change. The change in the work and break
locations of the cardiology nurses did not affect any basic change in
the nature of their duties. The change in work location did make the
performance of their duty to make reports, charts and plans on patient
care somewhat less convenient and efficient. Schedules, reports and
records upon which the nurses rely in performing these duties are no
longer available to them in their new work location (the conference
room), but are scattered throughout the cardiology ward on three
bulletin boards. Nor does the conference room provide as secure, quiet,
and private a place to perform those duties which are of vital
importance to the patient-care function of the nurses and the hospital.
The change in the break r-om made the cardiology nurses less readily
available to their patients and unable to respond to calls for
assistance, should any emergency arise in their absence. While the
cardiology nurses on break are not held responsible by the hospital for
unforeseen occurrences, their professional pride and concern for their
patients nevertheless suffers when they must take a break under these
circumstances. The reasonably foreseeable effect of this change is that
the cardiology nurses will be less inclined to take the rest breaks to
which they are entitled, and which are commonly accepted in industry as
being of benefit to both employee and employer. Indeed, rest breaks of
up to 20 minutes are reqarded as compensable time under the Fair Labor
Standards Act. See 29 CFR 785.18 and Mitchell v. Greinetz, 235 F.2d
621, 623-624 (C.A. 10, 1956). Thus, the cardiology ward as a whole
(both nursing staff and patients) suffers to some degree from this
foreseeable effect of the change in break room.
2. The temporary, recurring or permanent nature of the change. The
change is permanent and could affect the cardiology nurses for at least
50 minutes of their working day (20 minutes of break time and 30 minutes
to make report) plus an unidentified amount of time needed to make
patient charts, care plans, and discharge plans.
3. The number of unit employees affected or foreseeably affected by
the change. There are nine to ten cardiology nurses. In addition,
there and 10 to 11 nurses on the B/C Wards, who must now share their
break room with 9 to 10 cardiology nurses, and who also had to care for
cardiology patients who were placed on their wards during a two-week
period when the cardiology nurses used one of the cardiology patient
rooms for their report and break room. The number of such patients
placed on the B/C Wards was not established.
4. The size of the bargaining unit. Bargaining over changes that
occur strictly within the Wadsworth hospital, as here, are bargained
locally. Therefore, the bargaining unit appropriate to be considered
here is the Wadsworth hospital, which employs 384 bargaining unit
employees.
5. The extent ot which the parties may have established, through
negotiation or past practice, procedures and appropriate arrangements
concerning analogous changes in the past. There was no evidence of
record of the establishing of any such procedures and arrangements.
6. When would the implementation of the change involve or adversely
affect unit employees. The affect was fully felt on June 17, 1985.
Considering the totality of the facts and circumstances presented on
this record, I conclude that the Authority would classify the changes in
work and break locations here at issue as of a de minimis nature, noting
particularly that, at most, they affect 22 employees out of a unit of
384; involve only the location where the affected employees spend a
relatively small percentage of their working time; do not involve a
change in classification, duties, pay or promotion potential; and do
not deprive them of a location in which to perform work and take breaks,
only a less convenient and efficient one.
Accordingly, I conclude that the General Counsel has not established,
by a preponderance of the evidence /8/ that the violations alleged in
the complaint have occurred.
Ultimate Findings and Recommended Order
Respondent has not committed the unfair labor practices alleged in
the complaint.
The complaint therefore should be and hereby is DISMISSED.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: February 6, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Section 7116 provides, in pertinent part, that:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency --
1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(or)
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter. . . .
(2) The following abbreviations will be used in this decision. "TR."
refers to the transcript. "G.C. Exh." refers to the exhibits of the
General Counsel and "R. Exh." refers to those of Respondent. "G.C. Br."
refers to the brief of the General Counsel and "R. Br." refers to that
of Respondent.
(3) I reject the testimony of Nurse Boyd that nurses are accountable
for patient care while on breaks "because we're on paid time" (TR. 41).
A supervisor of Chief Nurse Bishop's experience (30 years with some 6
years at Wadsworth alone) is more likely to know this than one of Nurse
Boyd's experience (three years). There was no evidence of any instance
of a nurse being held accountable for an unforeseen occurrence while on
a break.
(4) The Assistant Chief of the Engineering Service testified at the
hearing and established that it would be unsafe to use the tub room for
the occupancy of personnel on a continuous basis because it did not have
a ready air supply. He established that it would take 10 days to make
the modifications necessary to correct this defect, at a cost of between
$6,400 -- $7,200.
(5) Section 7106 provides, in pertinent part, that:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating --
(1) at the election of the agency, on the . . . technology,
methods and means of performing work. . . .
(6) Undoubtely, the morale and dignity of hardworking nurses, tending
seriously ill patients, were sacrificed by a change which seems to have
accomplished comparatively little in the way of efficiency and much in
the way of resentment. See findings 9-16, above.
(7) Section 7106 provides, in pertinent part, that:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating -- . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
(8) This is the statutory burden of proof. See 5 U.S.C. Sections
7118(7) and (8).